The Hachette v. Internet Archive case has been in the press lately following the parties’ filing of summary judgment motions. But the case is not about the end of copyright as we know it, as Copyright Alliance CEO Keith Kupferschmid implied in his July 18 PW Soapbox, “Standing Up for Copyright.” Nor is it a “torpedo” aimed at the Copyright Act, as AAP CEO Maria Pallante said in a recent PW q&a. Rather, the case concerns the special role of libraries to provide open, nondiscriminatory access to books.
At issue in the publishers’ lawsuit is a practice called controlled digital lending, the principles of which my colleague Dave Hansen and I codified in a 2018 white paper. Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa.
As librarians see it, CDL is a traditional checkout function adapted for the needs of the modern library user. Under the Copyright Act, libraries have always been free to lend the books they have legally acquired without permission or having to pay additional fees. So why are these major publishers suing over CDL?
Because some publishers want to force libraries into a world in which digital books can’t be owned and can only be licensed (through services like OverDrive, for example), usually at significantly higher prices and under restrictive terms. Central to their lawsuit, the publishers argue that a library loan via CDL represents a lost license fee. And while I understand why these large corporate publishers would like to force libraries into an expensive, limited, non-negotiated, and highly profitable licensed access market for e-books, libraries should not have to buy (and rebuy) expensive, time-limited licenses to provide digital access to the physical books they have already purchased.
In her PW q&a, Pallante claimed that CDL will “irrevocably weaken the ability of authors to license their works.” In fact, a scan of a legally acquired print library book loaned under CDL does not negatively impact the market for publishers or authors. To the extent that a library loan has any impact on the marketplace, a digital loan under CDL is no different than the loan of the print book. Look at it this way: no one disputes that a library can mail a print book it owns to a patron. With CDL, libraries can now deliver access to their physical books using a more efficient means: the internet. And if a book’s digital checkout under CDL is controlled to function just like the physical checkout, what difference does it make whether a patron borrows the library’s physical book or the library’s scan of that book?
Pallante suggests such efficiency is a bad thing, citing the publishers’ long expressed desire for “friction” in digital library lending. But having legally purchased their physical books, the IA and its partner libraries are entitled under copyright law to lend them. Nothing in the Copyright Act requires there be any amount of friction in the lending process. Copyright law does not protect friction.
It is time for the major publishers to stop treating each library loan as a lost consumer sale. In his Soapbox, Kupferschmid complained that the IA has “amassed a collection without paying the rights holders a cent.” In fact, the books were paid for. These are the books that sit on our libraries’ shelves or in our off-site repositories. They were all purchased by a library or otherwise legally acquired, and the authors were all paid in accordance with their publishing contracts. Furthermore, this is what libraries do: amass and preserve collections that serve an important, fundamental purpose in society long recognized and valued by the public, courts, Congress, as well as by publishers and authors.
Despite the hyperbolic rhetoric surrounding this case, CDL is not some form of library-sanctioned piracy. CDL is based in copyright law to respect rights holders while broadening access to the books that library systems spend billions of dollars to collect and maintain for the public—including long-neglected, out-of-print books with enormous social and scholarly value and books for which commercial e-book licenses are not available.
As many students and patrons say, “If it’s not digital, it doesn’t exist.” Indeed, during the pandemic, the importance of digital library access became strikingly apparent. CDL simply seeks to preserve the library’s long-established and vital mission to collect and lend books in an increasingly licensed-access digital world.
Kyle K. Courtney is copyright advisor for Harvard University and cofounder/chair of Library Futures, a project of NYU Law’s Engelberg Center.
